by Rhodri C. Williams
Just as the controversy surrounding the recent ‘Gotovina decision’ by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) was beginning to subside, another bombshell. In this case (involving a re-trial), the Trial Chamber yesterday acquitted three Kosovo Albanians accused of torture and murder against Serbs and others in western Kosovo in the late 1990s, ordering their immediate release.
This decision will no doubt be turned inside out today in the blogosphere, and rightly so. Taken together with the recent Gotovina judgment, it is part of the swan song of an institution created with great hopes (mixed with a degree of healthy skepticism from some quarters) just as the great post-Cold War wave of belief in the restorative power of human rights and international justice arguably crested.
Having endured into the post 9-11 era (in large part due to inexplicable delays in acquiring its most prominent suspects), the Tribunal’s jurisprudence remain not only relevant to the development of broader international criminal law, but also – for better or for worse – to both the consolidation and destabilization of national narratives in countries forged in wars now fought an entire generation ago. For those who did not experience these wars but whose political reality remains shaped by them, the Court’s decisions on individual responsibility for past crimes are likely to be taken as evidence of collective vindication or collective stigmatization, raising a real risk that the legacy of the ICTY may be to perpetuate rather than lay to rest wartime animosities.
This in itself is not a critique of the ICTY. The Tribunal can hardly be blamed if far more is read into their decisions than either they or those who shaped their mandate ever intended. However, it does place a particular onus on the Court to be seen to act professionally and impartially. Observers such as Marko Milovanovic have argued that the Appeals Chamber failed this test in Gotovina, overturning a unanimous and comprehensive Trial Chamber decision by means of a rancorously split judgment only sixty pages long.
So what impact can Haradinaj be expected to have on the debate? At first blush, both the parallels and differences with the Gotovina judgment are striking.
In terms of parallels, both decisions have been taken as a form of absolution for newly (and in one case perhaps yet incompletely) forged countries whose formative experiences involved fighting against and ultimately expelling Serbs. While Gotovina was received in Zagreb to public adulation, the acquittal of Haradinaj – who interrupted a term as Prime Minister of Kosovo to go to the Hague in 2005 – was met with no less triumphalism in Prishtine/Pristina. According to the BBC:
Crowds in the capital Pristina watched the latest verdict on a giant screen, and celebrated his acquittal by letting off fireworks and cheering.
Mr Haradinaj’s lawyer, Ben Emmerson, said his client now wants to restart his political career.
“With the consent of the people, he will soon be resuming his rightful position as the political leader of the country,” Mr Emmerson told reporters at the court.
His face is splashed across vast billboards in Kosovo, accompanied by slogans like “the leader who keeps his word” and “forward with a clean slate”.
Meanwhile, the official Serbian reaction has been a predictable retreat into wounded victimhood. Again from BBC:
President Tomislav Nikolic said in a statement that the International Criminal Tribunal for the former Yugoslavia was formed “to try the Serbian people”.
He said the verdict would increase Euroscepticism in Serbia.
Other similarities include the fact that the Trial Chamber in Haradinaj rejected the Prosecutor’s allegation that the defendants participated in a ‘joint criminal enterprise’ (JCE), in this case aimed at consolidating the control of the Kosovo Liberation Army (KLA) over western Kosovo “by the unlawful removal and mistreatment of Kosovo Serb civilians and by the mistreatment of Kosovo Albanian and Kosovo Roma/Egyptian civilians, and other civilians, who were, or were perceived to have been, collaborators with the Serbian forces or otherwise not supporting the KLA.”
However, there are some crucial differences. First, and most important, the Trial Chamber had already rejected most counts against the defendants in 2008 and a re-trial was ordered by the Appeals Chamber based on concerns about witness intimidation. A second important point is that the decision in Haradinaj appears to have been uncontroversial among the judges in the Chamber, without the sort of dissension that will leave the Gotovina decision forever open to second-guessing.
At the end of the day, however, one key parallel between the cases is likely to haunt the politics of the region for some time to come. In both cases, crimes were undoubtedly committed against Serb civilians that led to the death of some and the wrongful (and in most cases permanent) expulsion of many of the rest from their ancestral homes. In neither case has the Tribunal succeeded in attributing responsibility for these crimes. You can explain that one up and down, but it will be hard to portray it as much of a success for the institution.