The Perception of “Victor’s Justice” in the International Criminal Tribunals for the Former Yugoslavia and Rwanda

In the article “Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda,”[1] Victor Peskin says that he is concerned with the perpetuation by the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) of the “victor’s justice” problem that plagued the Nuremberg and Tokyo tribunals. Although the ICTY and the ICTR are undoubtedly more fair than the Nuremberg and Tokyo tribunals were, insofar as they attempt to prosecute both the “winning” and the “losing” sides of the conflict, Peskin argues that the ICTY and the ICTR’s lack of enforcement powers makes it easy for victorious states to withhold evidence and the general assistance these tribunals need to investigate and prosecute suspects. As a result, Peskin argues that, over the years, few Tutsi-led Rwandan Patriotic Front army (RPF) and Croatian suspected war criminals have been indicted by the ICTY and the ICTR.

In my opinion, while in practice states cannot be compelled to cooperate with war crimes investigations, it is in their best interest to comply with the tribunals’ orders and to refrain from obstructing the investigations. Firstly, as Payam Akhavan has argued in his article “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?” and as I previously argued on this blog[2], it is no longer profitable for political parties to be associated “with the wartime leadership responsible for the criminal policy of ethnic cleansing.”[3] This is one of the factors than can explain the defeat of the nationalist Croatian Democratic Union (HDZ) party in the January and February 2000 national elections in Croatia following the death of its ultranationalist leader Franjo Tudjman. Indeed, the late Croatian President was posthumously found by the ICTY in the Gotovina et al. case[4] to have participated in a joint criminal enterprise of ethnic cleansing in 1995 in the Krajina region. Secondly, it is also profitable from an economic and geopolitical standpoint for states to refrain from obstructing the criminal investigations. For example, in the case of Croatia, full and unequivocal cooperation with the ICTY is seen as essential in its bid to join the European Union.[5] In short, from both a political and an economic point of view victorious states have an interest in cooperating with the tribunals’ investigations.

Unfortunately, these incentives often seem insufficient to ensure cooperation with the tribunals, especially in the case of the ICTR. As argued by Peskin, the Rwandan government has been successful in its attempt to “put the tribunal and its poor administrative performance and slow progress on genocide cases on ‘trial’ in the court of international opinion in an effort to deflect attention from the government’s refusal to cooperate.”[6] Furthermore, the alleged involvement of international actors such as the United States and the United Kingdom in maintaining the Kagame regime – which is suspected of withholding evidence that could be used in the prosecution of Tutsi suspected war criminals – has contributed to the perception of a “victor’s justice” problem.[7] The situation is hardly better in the former Yugoslavia, where it took more than four years for Croatian convicted war criminal Ante Gotovina to be arrested and extradited to The Hague, even though his capture was considered to be conditio sine qua non for the accession of Croatia to the European Union.[8]

In the end, the various attempts to block the tribunals from delivering justice in an “even-handed manner” illustrate that international criminal law, and international law in general, cannot be analyzed without reference to the wider geopolitical context and the strategic and diplomatic calculations based on realpolitik. Nonetheless, the fact remains that in order to avoid being perceived as “victor’s justice” courts and to avoid sending a contradictory message of accountability, both the ICTY and the ICTR should do more to prosecute alleged war criminals, irrespective of which side they were on. As Peskin rightly pointed out, “[i]nstead of promoting accountability, the tribunals’ failure to prosecute the winners may actually promote impunity by teaching the lesson that atrocities will not be punished as long as one prevails in the battle.”[9]

[1] Victor Peskin (2005): Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, Journal of Human Rights, 4:2, 213-231.


[3] P. Akhavan, « Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities? » (2001) 95 American Journal of International Law 7 at 7-31, at p. 14.



[6] Supra note 1, p. 224.

[7] Ibid.


[9] Supra note 1, p. 228.

Raphaël Girard Raphaël Girard est étudiant en troisième année à la Faculté de droit de l'Université McGill. Originaire des Cantons-de-l'Est, Raphaël s'intéresse au droit public de manière générale, et plus particulièrement aux enjeux internationaux contemporains.

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One Response to “The Perception of “Victor’s Justice” in the International Criminal Tribunals for the Former Yugoslavia and Rwanda”

  1. Kyle says:

    It is beyond doubt that the ICTR, particularly, acts as an agent of victors justice. I believe that this underlying fact is beyond any reasonable discussion.

    Firstly, there is the obvious fact that no member of the RPF has ever been charged, never mind arrested or convicted before the Tribunal. There were, at one point, 5 ‘secret’ indictments which were investigated and being prepared under the guidance of Arbour and Del Ponte.

    However, the moment the then Chief Prosecutor Del Ponte announced that she would indict members of the RPF, she was summoned to the US State Department and informed that no member of the RPF would be charged. She replied that she didn’t work for the US government, and regardless, she enjoyed prosecutorial independence. Within weeks she was replaced and sent to the ICTY.

    These are not the rantings of defence counsel, but are detailed in her memoires.

    Secondly, we can consider the caselaw of the tribunal, for example the plight of Barayagwiza. After massive violations of his human rights and right to a fair trial, the Appeals CHamber ruled that as a result his prosecution would be stayed. Remarkably, after the Kagame regime threatened to stop all cooperation with the tribunal, the Appeal CHamber overturned its own ruling. The Second Appeal Chamber ruling truly shocks the conscience.

    Finally, there are the practical elements that demonstrate the “victor’s justice” nature of the ICTR. The defence is constantly confronted with interference from the Rwandan government. In my two cases before the tribunal, I have had countless witnesses intimidated against testifying for the defence. Worse, I have had witnesses arrested and sentenced to life by Rwandan courts after testifying for the defence (where they weren’t in jeopardy previously). Finally, there are too many examples of defence witnesses being killed.

    More than 60 years after the Nurenberg Trials, those rulings have been dissected and analysed by numerous scholars and academics. While obviously there are well documented examples of victors justice in post WWII tribunals, the convictions have held up well and it is arguable that the rights of the accused were better protected in 1945 than they were today in ICL.

    Unfortunately, I hold no hope for the legacy of ICTR 60 years hence. Scholars will look back to the ICTR with anything but praise.


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