A feature story in The Claw Magazine takes a look at the International Criminal Tribunal for the former Yugoslavia through the eyes of senior lecturer Allen Weiner, who served as former U.S. legal counsel to The Hague:
In the summer of 2008, Serbian security forces arrested a Belgrade spiritual healer calling himself Dr. Dragan David Dabić. To most who knew him, Dabić’s run-in with the law came as a surprise; other than his topknot, bushy beard, and alliterative name, Dabić was notable only for his New-Agey columns on bioenergy and sperm-rejuvenation therapy, as the New York Times later reported. But to Serbian officials, this self-styled alternative medicine guru – whose real name was Radovan Karadžić – was also the orchestrator of the largest massacre in Europe since World War II: the genocide of 8,000 Muslim men and boys in the Bosnian town of Srebrenica. On July 30, 2008, after 13 years in hiding as a fugitive from international law, Karadžić was extradited to The Hague, Netherlands – the de facto capital of the United Nations – where he would be forced to stand trial before the first international criminal tribunal since Nuremberg: the ICTY.
The day after his extradition, the LA Times duly noted, “Arrival of Karadžić puts tribunal back in spotlight.” The ICTY, or International Criminal Tribunal for the former Yugoslavia, had been established in 1993 by the UN Security council for a singular purpose: to investigate and prosecute “serious violations of international humanitarian law” perpetrated during the War in Slovenia, the Croatian War of Independence, and the Bosnian War – referred to as the three Yugoslav Wars. As Karadžić prepared to mount his defense against 11 counts of genocide, war crimes, and crimes against humanity from the Bosnian War, the Western media hailed his pending trial as a triumph for the ICTY and international justice. The New York Times headline read, “Karadžić arrest lends credibility to international tribunals,” while The Telegraph quipped “Radovan Karadžić arrest ‘like capturing Osama bin Laden.’” Not since Nuremberg had a court of The Hague been so effective in bringing war criminals to international justice, indicting and arraigning no less than 159 suspects. In his article for the Wall Street Journal, “War-Crimes Courts Build Reputation for Efficacy,” Charles Forelle wrote that the ICTY offered “one clear lesson: Most of the time, international courts do get their man.”
Halfway across the world, in Palo Alto, California, the media flurry surrounding Karadžić’s upcoming trial was of special interest to a man named Allen Weiner. As the Co-Director of the Stanford Program in International and Comparative Law and Stanford Center on International Conflict and Negotiation, Weiner’s interest in the ICTY was partly academic. But unlike his colleagues, Weiner’s connection to the tribunal was also personal. From 1996 to 2001, prior to joining the faculty of Stanford Law School, Weiner had made his name at the U.S. Embassy in The Hague, where he had served as Legal Counselor and as the U.S. representative to the ICTY. His post did not require him to act as a prosecutor for the tribunal, but rather as the middleman between the U.S. and ICTY, negotiating the release of sensitive U.S. intelligence and representing American witnesses on the stand.
“It was a wonderful time to be in that position,” he said, his voice rising slightly. As a young lawyer, Weiner was able to pursue what he believed was a “powerfully just cause of holding perpetrators of terrible crimes criminally accountable.” But it would not have been quite the dream job, he says, had his objectives not been quite so in step with American interests.
At the time of Weiner’s appointment in 1996, international justice had only recently become U.S. policy. Throughout the 80’s, Weiner recounts, there had been “a lot of work going on” in New York and the United Nations toward the creation of an International Criminal Tribunal “but there wasn’t much enthusiasm.”
“There were discussions, there were drafts – that went nowhere,” Weiner says. It was Yugoslavia’s increasingly obvious parallels with the last great European crisis that broke the stalemate in the early 90’s. “This idea that had been going nowhere in New York was suddenly animated by the atrocities that were taking place in Yugoslavia,” Weiner reflects. “I really think that it was images from the former of Yugoslavia, in particular some of the concentration camps that were so reminiscent of the second World War,” that convinced the U.N. Security Council “to move from atrocity to response.” Since the outcome of the Holocaust and Japanese occupation had been the Nuremberg and Tokyo War Crimes Tribunal, Weiner claims that it was “easy to focus the imagination on the idea of a new Tribunal.”
Upon the establishment of the ICTY in 1993, the Yugoslav Wars were not yet over. According to Weiner, the tribunal hoped that fear of retribution would prevent further atrocities. “I think there was genuine hope when the Tribunal was created that it would serve a deterrent function,” he says. But the violence in Yugoslavia worsened in spite of the new criminal court. “You have to remember,” Weiner says, “the worst atrocity that took place in the war in the former Yugoslavia – the Srebrenica massacre – happened in 1995, after some of the people who were involved in that atrocity were already indicted by the ICTY.”
...The UN- mandated presence of several hundred Dutch peacekeepers had not prevented the tragedy, and neither had the ICTY. It was then that the tribunal accepted its failure to save lives, Weiner says, focusing instead on its ability to help survivors.
“There there was a really powerful belief,” he says, “that if the ICTY were able to hold the worst perpetrators of crimes accountable, it would enable victims groups to see that it was not everyone in that whole other group who’s evil and bad, but just those particular actors.” The ICTY hoped that this process, known as the “individuation of guilt,” would enable victims “to start to deal with other members of that group who were not guilty.”
The tribunal also recognized the importance of documenting the atrocities that had taken place. “A historical record can be an important element in creating the political conditions enabling a war-torn society to move forward,” Weiner says.
But the task was daunting. Unlike the Nazis, who meticulously recorded their activities (much to the benefit of the Nuremberg Trials), the warring nations of former Yugoslavia took steps to hide the evidence of their crimes. Most troublingly, Weiner points out, the tribunal had difficulty proving a massacre of massive proportions had taken place at Srebrenica . “After burying all the people they killed in these mass killing fields,” he says grimly, the perpetrators of Srebrenica “realized they needed to hide the evidence. So they dug up the bodies with backhoes and dump trucks and scattered them in little secondary grave sites all over Bosnia.”
Without the evidence, the ICTY was hampered in refuting Serbia’s claim that Srebrenica was nothing more than perverse propaganda designed to ostracize Bosnian Serbs. “For a long time after Srebrenica, eight to ten thousand people were missing but there were no bodies,” Weiner says, “so the Serbs basically denied a terrible atrocity had taken place. ‘We don’t believe ten thousand people were killed,’ they insisted, asking ‘Where are the bodies?’”
What the ICTY did not anticipate, he warns, was that the people of former Yugoslavia would be unwilling to assist the court in its investigations. “This is one of the huge problems that the Court faced,” Weiner says. “It just assumed the countries of the former Yugoslavia would accept its legitimacy.” In 1994, just a year after its founding, the ICTY issued “a couple of indictments and sent them off to Bosnia,” under the assumption that “Bosnian Serbs in particular would comply with these arrest warrants .” The court was unprepared for the backlash. “They didn’t realize that they’d be viewed essentially as a hostile force among Bosnian Serbs, Serbians, Bosnian Croats, and Croatians as well, and they were ill-equipped to deal with that,” Weiner says. “There was tremendous ignorance or misinformation in Yugoslavia about the ICTY,” Weiner says. “The only people who were talking about the ICTY in Yugoslavia were people who were critical of it – describing it as biased, as an instrument or tool of the West to manipulate domestic politics to humiliate the Serbs in particular – and it took the ICTY a long time to realize that this was a huge problem.”
As a result of the antagonism toward the ICTY on the ground, “the West saw the active support of the ICTY as inconsistent with the peace-building and state-building process that NATO was engaged in.” But without cooperation from Yugoslavians, the ICTY was utterly reliant on Western support. “It depended on the West for information and for money,” Weiner says. “It had no police force, it had no capacity to enforce its orders on the ground, and it depended on Western military forces for things like search warrants and arrests.”
Still, the end of the Yugoslav Wars marked a turning point for the ICTY. “When NATO and Washington and Paris and Berlin and London realized that what was good for the ICTY was also good for their foreign policy objectives in the former Yugoslavia, then we started to see the deployment of real diplomatic and military coercion.” Beginning in 1996, the year Weiner first reported to his post at The Hague, the U.S. government began to use its intelligence to find where the victims of Srebrenica had been interred. From 1996 to 2000, 21 mass graves were eventually exhumed, revealing the lengths to which Serbian forces had gone to cover up the atrocities. The scattering process had meant that body parts from the same person could often be found in more than one gravesite, complicating identification. Still, it was obvious that the victims were executed, rather than killed in combat; many of the bodies still wore blindfolds, and the hands were tied with cloth, string and wire.
This, Weiner believes, was one of the court’s “great successes.” “The introduction of the evidence showing that the massacre occurred made it much harder for anyone to deny the atrocity.” Weiner also points out that the Court “finally realized it needed to do more to help people in the region understand more about what the Court did, what it was , and what its mission was,” he says. “In 1999 , the ICTY established an outreach program and actually established field offices in the former Yugoslavia to disseminate accurate information about the Court.”
Although Weiner now serves as the Co-Director of the Stanford Program in International and Comparative Law, he is not afraid to show irreverence toward the legal discourse surrounding international justice. “The whole question of humanitarian intervention .or the responsibility to protect is a subject that is written about really, really extensively in international law jurisprudence. I sometimes cannot tell whether the literature is more voluminous or more repetitive, because people keep making the same arguments.”
Weiner has no faith that the recognition of a right of humanitarian intervention would itself change the likelihood that states will use military force to put a halt to atrocities like those that took place during the wars in the former Yugoslavia. “You could have a doctrine authorizing humanitarian intervention, and you still wouldn’t see U.S. marines in Sudan,” he says. “My view is that the focus on the responsibility to protect or the right of humanitarian intervention mistakenly locates the central questions in a legal context.”
He argues that the conversation should instead center on the “instrumental advantages” of international courts. “There was a time when the justice issue was irrelevant,” Weiner says, “In the transitions from authoritarianism in Chile and Argentina in the late 1970’s, it was understood that you would trade off justice for peace. Justice was not really very much of a factor. And even if we sometimes now see a conflict between justice and peace, the ICTY has really elevated the role of justice and ensured that we always have to have some strategy for taking justice into account in these mass atrocity and conflict resolution situations.
“The success of the ICTY in terms of demonstrating that an international court like this could function created tremendous momentum for the tribunals that were created afterwards – the Rwanda Tribunal, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and ultimately the international criminal court in The Hague. The fact that we now have a permanent international criminal court in The Hague I think is a direct result of the success of the ICTY.” Yet for a law professor, especially the former U.S. legal counsel to The Hague, Weiner remains very humble in thinking about what law can accomplish.
“The tribunal was founded,” he says, “in part to create the impression that we were doing something without having to do everything.” He adds, “But it remains unclear how effective judicial processes can be in trying to create a new basis for new relations either within in a society or between countries that have suffered something as terrible as genocide.”
Weiner reflects, “I think there is a way in which we tend to over-legalize or see law as a really powerful tool for addressing these problems, but the truth is that law is not an especially powerful tool. It’s a tool and it can serve functions, but in the international system in particular, it has a modest role to play. We like it because it’s didactic, it’s black and white, it involves norms, it’s psychologically powerful, but if we really want to think about relations between Serbia and Bosnia, it is a fair question whether or not solutions other than legal solutions are the ones that need to be emphasized.” Still, Weiner is pragmatic:
“In the realm of human rights, I don’t think the fact that you can’t achieve your maximalist objectives means it’s hypocritical or cynical to take those steps that you can.”