Reviewed by William A. Schabas, Irish Centre for Human Rights, National University of Ireland, Galway. Email: william.schabas [at] nuigalway.ie.
This is a book about the complex and often difficult relationship between the international criminal tribunals for the former Yugoslavia and for Rwanda with the governments of the constituent parts the former Yugoslavia, following the break up, and of Rwanda. Thus it concerns the almost inevitable tension that results when international institutions encroach upon an area that traditionally was the preserve of sovereign states: the prosecution of persons for crimes committed on their territory.
The International Criminal Tribunal for the former Yugoslavia was created by the United Nations Security Council in May 1993, at the height of the war in Bosnia and Herzegovina. Intended as a measure to promote conflict resolution, it was premised upon the likelihood that the courts of the various new states in the region would not do justice themselves to perpetrators of atrocities, with perhaps the exception of any of their enemies who might fall into their hands. The Tribunal did not really become fully operational until after the Bosnian war was over. But resistance to principled and impartial justice within the region remained. The court had stepped in to prosecute those whom the national courts were reluctant to pursue. Yet the court could not investigate the cases, gather evidence and even take custody of the accused without the cooperation of the very states that it did not trust to prosecute the cases themselves. Hence, the conundrum of cooperation that Victor Peskin endeavours to plumb.
Rwanda seemed to be somewhat different. It was actually the initial source of calls to create the International Criminal Tribunal for Rwanda, which was set up by a Security Council resolution adopted in November 1994, less than four months after the end of the devastating genocide. But Rwanda’s initial enthusiasm for international justice quickly soured when it could not agree with the United Nations on several important aspects of the new institution. For example, Rwanda disagreed with the Security Council’s insistence that there be no capital punishment. It did not accept limitation of the temporal jurisdiction of the Tribunal to the calendar year 1994. Rwanda wanted the seat of the Tribunal to be in its capital, Kigali, whereas the United Nations opted for nearby Arusha, in Tanzania. As a result, Rwanda, which was by sheer coincidence a member of the Security Council when the vote to establish the Tribunal was adopted, was the lone dissenter, opposing establishment of an important international effort to help [*966] render justice. In the years that followed, Rwanda’s relationship with the Tribunal was every bit as troublesome as the relationship between the Balkan states and the sister Tribunal.
As Peskin explains, by 2002 or so, a curious and unexpected pattern had emerged. The Balkan states had become increasingly willing to cooperate with the Yugoslavia Tribunal. This was manifested in such dramatic developments as the transfer of Slobodan Milosevic to stand trial in the Hague, which took place in late June of 2001. By contrast, Rwanda had grown more and more negative about its international court, threatening to block cooperation altogether and literally jeopardizing all future activities. In mid 2002, according to Peskin, the Rwandan government imposed travel restrictions that had the effect of preventing its nationals from testifying in Arusha. This brought at least one trial to a temporary halt.
The topic of cooperation has been largely neglected in the academic literature. Peskin highlights the ‘Court-centred’ studies, most of them authored by lawyers close to the Tribunals, that focus on the legal issues but fail to unravel adequately the political dimension of the problem. As for the Rwanda Tribunal, it also suffers from a more traditional neglect, because students of the subject are not only ‘Court-centric,’ they are also ‘Euro-centric.’ He also notes quite appropriately that most academic commentators are enamoured of the alleged independence of the international tribunals from the realm of the political, extolling their ability to transcend such considerations. By contrast, Peskin starts with the assumption that politics is at the core of the operation of these tribunals. The way forward is to acknowledge this reality, he posits, rather than to deny it.
Much of this volume consists of a very rich and useful narrative of some of the big crises in which the issue of cooperation has featured. Peskin explores the complexities of the arrest and transfer of various Serb suspects to The Hague, beginning with persistent and still only partially successful attempts by the International Tribunal to gain custody over two of its first indictees, Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. Only in mid-2008 was Karadzic finally arrested in Belgrade and surrendered to the Tribunal; his accomplice Mladic is still at large. And although these two leaders were only a source of great frustration, in the meantime Slobodan Milosevic was arrested and brought to trial. The whole business required time and patience, but in the end it was fundamentally successful. Peskin explores the political aspects that drove the process of arrest and surrender, insisting upon the democratic transition within Serbia rather than the simplistic, standard explanation of economic pressure from the United States and the European Union. Of course, both factors surely contributed here.
Serbia may have emerged as the main culprit in the conflict, but there is much evidence of Croatian atrocities whose responsibility lies at the highest levels. Croatia too frequently defied the Tribunal in the early years. An important decision by the Appeals Chamber of the Tribunal, in October 1997, responded to Zagreb’s resistance to a request for documents from the Prosecutor. Here, [*967] too, democratic transition was a decisive factor. Whether or not former Croat president Franko Tudjman was ever actually indicted by the Tribunal is a closely guarded secret that even the revealing and indiscreet memoirs of former United Nations officials, including Prosecutor Carla del Ponte, have not elucidated. But it is certain that his death brought about a positive change in Zagreb’s dealings with The Hague. Eventually, the Tribunal got what it wanted, arresting leading suspect Ante Gotovina in 2004 with the assistance of the Croat regime.
But just as Serbia and Croatia manifested a similar evolution, drawing steadily closer to the International Tribunal as their young democratic regimes became more stable, Rwanda’s attitude towards the Tribunal did not develop in the same way, or so Peskin argues. His thesis is that at the heart of the tension was concern that the Tribunal would turn its attention to the alleged crimes of the Tutsi-led Rwandese Patriotic Front, which took power in July 1994 under the leadership of now-President Paul Kagame. Since initial reports emerged in 1995 from both United Nations bodies and human rights NGOs, it has become increasingly clear that atrocities were also perpetrated by the victors in the Rwandan conflict, although on a scale that is nowhere near that of the genocide. Estimates vary inevitably, but a well-accepted estimate considers the victims of genocide to have numbered in the region of 800,000, while the victims of massacres committed by the other side, some of them inevitably driven by sentiments of vengeance, were in the order of 25,000. The first two prosecutors of the International Criminal Tribunal for Rwanda did not show much interest in pursuing the crimes committed by the Rwandese Patriotic Front, but this seemed to change when Carla del Ponte took office in September 1999. The investigations barely figure in the public record of the Tribunal, and it is therefore only through interviews and investigations by a scholar like Victor Peskin that we can glean much knowledge on the subject.
There is therefore one important difference between Rwanda and the Balkans that may explain the differences in attitude to cooperation. At the Yugoslavia Tribunal, the Prosecutor is after the leaders of old regime rather than their opponents, who have steadily taken power as democracy has prospered. This recalls the pattern in post-war Germany, where old Nazis and their sympathizers, who were present enough in government in the early years, became increasingly marginalised. One result was an increasing willingness of German courts to address Nazis war crimes and atrocities themselves. But it was only in the 1960s that meaningful domestic trials got underway, and Germany has never looked back. In Rwanda, although the Prosecutor has been and remains principally concerned with the enemies of the current regime, that is, the former leaders and instigators of the genocide, its threat to prosecute persons associated with the current government inevitably make the relationship more difficult and problematic.
But are the distinctions as important as Peskin indicates? Rwanda, too, has gone through its own progressive evolution, although it is probably more African than European in flavour. For example, [*968] in 2007, Rwanda abolished capital punishment, an indication of its aspiration for full membership in the progressive wing of the international community. By all accounts, its courts and prisons have steadily improved. The major episodes of non-cooperation with the Tribunal now appear more as anomalies in what has been a pretty good record, especially in recent years. The virtual melt-down in 2002, when Rwanda prevented witnesses from traveling to Arusha, was an ephemeral one. In semi-annual presentations to the Security Council, undertaken as part of the completion strategy of the Rwanda Tribunal beginning in 2004, both its Prosecutor and its President have extolled the cooperation of the Rwandan government. There have been no complaints whatsoever. Perhaps, then, Rwanda actually confirms the pattern that Peskin has observed in the Balkans.
Peskin’s important and valuable insights into the relationship between international tribunals and the governments of countries that are targeted by their prosecutions provide great assistance in understanding future problems. The United Nations Security Council may not ever repeat its experimental establishment of the two ad hoc tribunals for the former Yugoslavia and Rwanda. It is not entirely out of the business, but the more recent institutions, for Sierra Leone and Lebanon, manifest important differences in conception. The lessons that Peskin presents are surely most important for the permanent International Criminal Court. Because the Yugoslavia and Rwanda Tribunals were created by the Security Council acting pursuant to Chapter VII of the Charter of the United Nations, the institutions could always argue that States were obliged by international law to cooperate. They never tired of invoking this mantra, although without much result, as Peskin demonstrates. Political developments, rather than empty threats that the Security Council might intervene, moved the cooperation agenda forward. The powers of the International Criminal Court in this respect are even more modest, because it cannot in any way count upon Security Council muscle to help ensure compliance with its ‘requests.’ Peskin helps us to understand that here too political developments will be the key to cooperation. His findings should be much studied by those who are struggling to make the International Criminal Court work. Perhaps he will turn his attention to a sequel, examining the troubled dealings of the permanent International Criminal Court with the governments of Uganda and Sudan.
© Copyright 2008 by the author, William A. Schabas.
International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation