The inauguration of the permanent International Criminal Court in The Hague on 11 March 2003 is a landmark event. Only a decade ago, in the midst of raging violence in disintegrating Yugoslavia, the surrender by nation states of war crimes suspects to a supranational body would have been almost unthinkable.
But the very next day displayed a grim reminder of the problems that still face the evolution of international criminal justice. Zoran Djindjic, the prime minister of Serbia the dominant republic in what remains of Yugoslavia was assassinated. Djindjic, who had come to power in the wake of the October 2000 popular revolt against Slobodan Milosevic, had been a strong backer of cooperation with the International Criminal Tribunal for the Former Yugoslavia (ICTY), and had been responsible for sending the former dictator to face trial there in June 2001.
It is not yet clear why assassins chose to gun down the 50-year old Djindjic outside a government building in Belgrade on 12 March. But the prime minister had made many enemies since he took office in January 2001. His role in handing over Milosevic to the ICTY was deeply controversial in Serbia; and Djindjic had recently pledged to help arrest another target of the tribunal the former commander of the Bosnian Serb forces, Ratko Mladic.
Government officials at first accused the so-called Zemun mafia group led by Milorad Lukovic, a former commander of a special police unit, of killing Djindjic to pre-empt a planned crackdown on organised crime and the arrests of other gangsters wanted for war crimes. The then acting prime minister Nebojsa Covic (succeeded on 18 March, after a parliamentary vote, by Zoran Zivkovic) says that close ties were created during Milosevics regime between crime figures, war criminals and war profiteers, and these groups probably conspired to stop Djindjics attempts to bring them to justice.
After the slaying, the government instituted a state of emergency. More than 3,000 people from the Serbian underworld, including the former head of state security during the Milosevic era, have been arrested. The judiciary and media have also been targeted, with the head of Serbias constitutional court sacked and three publications closed down.
On 25 March, police arrested the sniper who they believe actually pulled the trigger. The suspect, Zvezdan Jovanovic, is the deputy commander of a notorious paramilitary unit, the Red Berets, used by the Milosevic regime in its ethnic cleansing campaigns in Bosnia and Croatia.
The Hague tribunal, Serbian travail
Even if the assassination proves to be unrelated to Djindjics support for The Hague process, his vital role in aiding the Hague tribunals efforts to bring war crimes suspects to book means that his death imperils Serbias future cooperation with the ICTY. How much to cooperate with the ICTY has been an extremely volatile issue in Serbia and has bitterly divided the two leaders who emerged in the wake of Milosevics removal: Zoran Djindjic and the man who succeeded Milosevic as president of Yugoslavia, Vojislav Kostunica.
The current turmoil in Serbia now formally part of Serbia and Montenegro, the latest successor to the Yugoslav state has placed the future both of the country and its cooperation with the tribunal in doubt. Without any independent enforcement powers, the ICTY (and its sister tribunal, the International Criminal Tribunal for Rwanda (ICTR), rely on the goodwill of states to hand over indicted war crimes suspects and to allow investigators to collect evidence. The tribunals dependence on state cooperation underscores the key role that pro-western reformers such as Djindjic and his Croatian counterpart Ivica Racan have often played in countering vocal nationalist opposition to sending indicted war criminals to The Hague.
Despite Serbias defeats in successive Balkan wars, a considerable part of its population still views its top political and military leaders as national heroes. The prospect of their appearance at The Hague has not been a popular one in the country. Milosevics fall from power was a dramatic turning-point that brought an end to authoritarian rule. But Kostunica, a nationalist as well as a constitutionalist, has been reluctant to cooperate with the ICTY. Djindjic, by contrast, saw cooperation as a way to gain vital economic assistance from the west and gain entry into European institutions.
Serbia was rewarded with a handsome aid package for handing over Milosevic to the ICTY and has been promised more aid if the flow of indicted war crime suspects continues. Djindjic extolled cooperation largely on pragmatic grounds rather than as a moral imperative for Serbia in coming to terms with its forces role in committing wartime atrocities in Croatia, Bosnia, and Kosovo. This pragmatic approach has enabled nationalists to accuse him of selling Serbian war heroes to the west.
The cooperation issue has continued to handicap Serbia. The ICTY continues to push Serbia for the handover of more suspects, especially Ratko Mladic, who was indicted in 1995 for ordering the massacre of more than 7,000 Bosnian Muslims at Srebrenica, the worst atrocity in Europe since 1945. Also indicted for the massacre is former Bosnian Serb leader Radovan Karadzic, who is believed to be hiding in the Bosnian Serb republic.
Apparently in response to US pressure, Djindjic had recently promised to try to arrest Mladic. The prospective handover of Mladic might have been far more controversial even than that of Milosevic, because at the time of his arrest the latter was discredited for losing wars and ruining the economy. Moreover, both Mladic and Karadzic remain heroes to nationalists, their likeness celebrated on t-shirts and buttons in Belgrade.
How fast should justice run?
Despite the failure to gain custody of these and other indicted war crime suspects, the ICTY has steadily managed to wrest more cooperation from the states of the former Yugoslavia, thanks in large part to pressure from the US and the European Union. Yet the existing tribunals, as well as the new International Criminal Court, will always confront the dilemma of trying to obtain cooperation from states without the police powers enjoyed by domestic courts.
The ICTYs dependence on states has forced it at times to act strategically in an effort to persuade them to cooperate as well as to bolster pro-cooperation forces within them, who (like Djindjic himself) must balance competing domestic pressures for and against extradition.
This practice of bolstering domestic allies leads the tribunal towards its own form of pragmatism postponing indictments and making deals with governments to hand over some suspects, while delaying the transfer of others. But even such deals do not necessarily insulate leaders like Djindjic from domestic rebellion and violence.
There may in fact be no right time for the tribunal to issue controversial indictments and pressure states to make arrests, especially when such arrests can spark coalition crises and embolden nationalists. Unlike a permanent court, the ICTY is projected to close its doors in 2008. This creates even more pressure for its chief prosecutor, Carla Del Ponte, to push governments to surrender indicted suspects sooner rather than later. Del Ponte, who paid homage to Djindjic during a visit to his grave on 21 March, has reaffirmed her intention to press Belgrade for full and unconditional cooperation with the ICTY, including the handover of the nineteen indicted suspects still at large. Government officials in Belgrade and Zagreb have often sought to delay the arrest and transfer of war crimes suspects by arguing that such actions undermine domestic political stability. Tribunal officials and international human rights organisations view such claims with scepticism. They argue that the consistent pursuit of justice will bolster stability and democracy by helping to establish the rule of law and rid society of criminal elements, whether mafia or war criminals (and in Serbia, these groups are often the same).
During her visit to Belgrade, Carla Del Ponte told a seminar: Those who claim that cooperation with the tribunal is adverse to the internal stability of Serbia, and that Serbia has been under too much pressure to meet its obligations, are taking a dangerously short-term view How can bringing those people to account for such unspeakable acts be a destabilising factor on the road to democracy?
In the light of Djindjics assassination and the crisis it has created in Serbia, Del Pontes question is more real than rhetorical. More broadly, it raises another question that is urgent for the evolution of international criminal justice: how can, and should, the principle and practice of cooperation with the new war crimes tribunals relate to the development of democracy within states?
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