Almost two decades later, the spectre of armed conflict no longer looms on the horizon for the former Yugoslav republics, but questions of nationalism and identity are still pervasive. Today’s peace in the Balkans is an uneasy one, punctuated by political flareups. The 2008 declaration of independence by Kosovo is but one example of the recent history of contested outcomes; the matter is still before the International Court of Justice.

But perhaps the ICTY has helped to entrench the notion of turning to courts – whether domestic or international – as a recourse for grievances. “Assessing the Legacy” of the ICTY considers exactly these questions. Although the Tribunal has indicted over 160 person, including various heads of state and other political and military figures, critics still charge that the Tribunal has been costly and not effective enough.

With a budget of hundreds of millions of dollars per annum, international justice sure doesn’t come cheap. Some have even suggested too much money is spent on things like overly comfortable accomodations for the accused persons.

TYPICAL PRISON CELL WITHIN THE ICTY: Nota bene - furnished accomodations in the Hague are gratuitously provided for detainees, not legal interns!

On the one hand, the ICTY represents a remarkable resurgence of international law. Not since the Nuremburg trials which followed the Second World War has an international criminal tribunal been operational. The ICTY offered new binding interpretations of the Geneva Conventions and other instruments of international humanitarian law. It has paved the way for tribunals for the conflicts in Rwanda, Sierra Leone and Cambodia. With a staff of 1,200 lawyers, critics have even charged that the ICTY exists more for the legal community than the Yugoslav people.

What can be done to mend the rocky relationships between the Tribunal and its primary constituency – those affected by the wars?

Perhaps one answer lies in recognizing that criminal tribunals will never fully respond to the need for national reconciliation in a post-conflict setting. Prosecuting and jailing individuals cannot restore a sense of unity or purpose to a divided country, or many divided countries in the case of the Balkans. Nations like South Africa chose instead to bypass assigning criminal liability leftover from the apartheid era, and instead move forward with a “Truth and Reconcliation Commission” wherein parties including the African National Congress and the apartheid-era military provided extensive documentation about their human rights violations. Civilians were killed, tortured and persecuted by multiple state and non-state actors throughout the apartheid era, yet an “Amnesty Commission” was empowered to absolve people from liability, as long as their apartheid-era abuses were politically motivated, proportionate, and there was full disclosure by the person seeking amnesty. Chile, El Salvador, Ghana, Liberia and East Timor are but a few of the nations holding similar commissions and offering amnesty rather than pursuing criminal liability for wrongdoing during armed conflict.

These national reconciliation commissions also have their critics. Victims who have lost family members, or faced torture or abuse sometimes feel as though they have not obtained justice through Truth and Reconciliation Commissions. Yet many victims also claim the ICTY has not delivered justice either.

The ICTY’s successful incarceration of  war criminals is a success story in the eyes of many. Nonetheless, societies entering a post-conflict era would do well to recognize that criminal tribunals alone cannot restore nations, just as criminal liability in domestic crimes cannot restore victims. Hosting a conference on assessing the Tribunal’s legacy is an excellent opportunity to consider other elements of post-conflict rebuilding processes which are critical in restoring the ICTY values of peace and stability.

Proceedings against Radovan Karadzic began on October 28, 2009, despite the accused’s refusal to attend court. The case was supposed to start on October 26 but Karadzic, who is representing himself, asked for at least eight more months to prepare his case. The court gave him 24 hours to change his mind. After he failed to appear on Tuesday, judges ordered the Prosecution to open its case and warned Karadzic to appear in court or risk having counsel assigned to him and being tried in absentia.

For more information, see the Reuters article or our own Lee Rovinescu’s analysis of the situation.

2. R. v. Munyaneza

On October 29, 2009, Justice André Denis of the Quebec Superior Court handed down a life sentence to Désiré Munyaneza, the Rwandan genocidaire who helped organize and perpetrate the mass-murder of Tutsis in the Butare area. On May 22, 2009, Justice Denis found Munyaneza guilty of two counts of genocide, two counts of crimes against humanity and three counts of war crimes. Having concluded that the killings were premeditated, Justice Denis held that Munyaneza would not be eligible for parole for 25 years.

Munyaneza was the first person to be charged under Canada’s Crimes Against Humanity and War Crimes Act. The Act incorporates universal jurisdiction, allowing Canada to prosecute any individual present in Canada for genocide, war crimes and crimes against humanity.

3. United States of America v. Cail

On October 26, 2009, the Alberta Court of Appeal upheld the Minister of Justice’s decision to extradite Ronald Cail, a Canadian citizen and Albertan resident, to the United States (US) for the distribution of child pornography.

Having allegedly distributed the material via his computer from his Alberta home, Cail argued that the evidence did not establish that the crime at issue occurred within the foreign jurisdiction. He essentially relied on s. 47(e) of the Extradition Act, which provides that the Minister may refuse extradition where “none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction”. The Court acknowledged this basis for refusal but added that it was discretionary and not absolute. It supported the Minister’s privileging of US interests in prosecuting the crime over those of Canada. In so doing, the Court implicitly privileged the use of an interests-analysis approach when making extradition decisions over the use of traditional localization rules. The court notably admitted the difficulty in determining the location of such a crime: “when someone sends child pornography over the internet the crime is partly committed at both ends of the transmission”.

Cail also argued that “it would be unjust or oppressive for [him] to be tried in the US for an offence allegedly committed in Alberta, in the absence of assurances regarding funding for legal assistance”. Dismissing this argument, the Court posited that “the Minister is entitled to assume that the person sought by the foreign jurisdiction will receive a fair trial there”. Drawing on Canada v. Schmidt ([1987] 1 S.C.R. 500), the Court concluded that the Minister of Justice only has to seek assurances when extradition would “shock the conscience” of Canadians.

For more information, see the full decision.

4. ‘Honduras’ v. Brazil?

On October 28, 2009, the Interim Government of Honduras filed an application to institute proceedings against Brazil at the International Court of Justice. According to the ICJ press release, the Interim Government seeks a declaration that Brazil has breached the principle of non-intervention by allowing ousted President, José Manuel Zelaya Rosales, and his supporters to take refuge in the Brazilian embassy and use the premises as “a platform for political propaganda and thereby [threaten] the peace and internal public order of Honduras”.

James Harrison of International Law Observer argues that it is “a particularly controversial [move] given the international condemnation of the coup d’etat”. Brazil has already indicated that it does not consider the interim government to be competent to bring the case. As Dapo Akande writes at EJIL talk, the ICJ may get to pronounce on whether the new “government” is actually the government. For a preliminary analysis of this issue, see Akande’s full post.

Nonetheless, the future of the proceedings is now in question: on October 30, 2009, the interim leader of Honduras, Roberto Micheletti, signed an agreement with Zelaya to end the crisis and create a power-sharing government.

5. French Embezzlement Probe Against African Leaders Comes to a Halt

Anti-corruption group Transparency International had accused Omar Bongo of Gabon, Denis Sassou-Nguesso of the DRC, Teodoro Obiang Nguema of Equatorial Guinea, and their relatives, of acquiring luxury homes and cars in France with African public funds. On October 29, 2009, the Court of Appeal of Paris ruled that the complaint was inadmissible because the NGO had no interest in the matter. The court justified this decision with a finding that the NGO had not suffered a direct personal injury from the alleged corruption. Transparency International has already announced that it will appeal this decision to France’s highest court.

For more information, see the le Monde or Reuters articles.

6. Do Predator Drone Attacks Violate International law?

On October 27, 2009, Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, warned that the United State’s use of unmanned warplanes to carry out attacks in Pakistan and Afghanistan may be illegal. Reiterating concerns that he raised with the US in June, Alston criticized the US administration for failing to reveal

the legal basis on which the United States is operating the drones, [the] precautions it is taking to ensure these weapons are used strictly for purposes consistent with international humanitarian law, and [the] mechanisms … in place to review the use of the weapons (Reuters).

Opinio Juris’ Kenneth Anderson, who has written extensively about targeted killings, believes that the US’ targeted killing program is perfectly legal but regards the unwillingness of the Obama administration to clearly state the legal basis on which this program operates to be “a serious legal policy mistake”.

7. US and EU Reach Agreement on New International Criminal Law Treaties

On October 28, 2009, the US and the EU announced an agreement for two treaties on mutual legal assistance and extradition. The new treaties seek to improve EU-US cooperation in combating terrorism, cyber crime, international fraud, human and drug trafficking, and other serious international crimes. According to the Courthouse News Service, the new treaties “include first-time rules that would allow EU countries to refuse to extradite criminals that might be subject to the death penalty, but left dangling the issues of Guantanamo Bay prisoners”.

For more information, see the US Department of Justice press release and the Jurist article.

Other notable developments and opinions:

• Janet Albrechtsen – Has Anyone Read the Copenhagen Agreement?
• The U.N. backed negotiations on global arms trade treaty
• U.N. again condemns U.S. embargo against Cuba
• U.N. Chief Ban Launched an Inquiry Into Guinea Protest Violence

The Right to be Present: Fundamental but not Absolute

Those standing trial in front of the ICTY have the statutory right to be present at their own trials (art. 21(4)(d) ICTY Statute). Moreover, the accused is entitled to adequate time to prepare for his trial (art. 21(4)(b)). While the right to be present at one’s own trial is a fundamental one, Judge Kwon remarked on Tuesday, it is not absolute. Indeed the Human Rights Committee (see Monguya Mbenge v. Democratic Republic of the Congo, Communication No. 16/1977) confirms that one may, when voluntary and unequivocal, waive the right to be present. Karadzic had notice of the beginning of the trial and decided not to show up.

One can, however, infer his seriousness to defend himself in front of the tribunal rather than boycott the court as he has assembled a legal team of 30 international lawyers to prepare for his defence. Taking into account the amount of evidence involved in the case and the necessary time to prepare a full defence, the court’s Tuesday finding that Karadzic unequivocally waived his right to be present is questionable. Nevertheless, Judge Kwon’s finding of an unequivocal waiver leads to important consequences with regards to trials in absentia and assigned counsel.

The Court’s Problematic Options

Amongst 5 options outlined by Judge Kwon at the end of proceedings on Tuesday, the likely possibilities that could occur in the continued absence of Karadzic are: a) continue the trial without Karadzic and without any defence counsel; b) appoint counsel on behalf of Karadzic; or c) appoint an amicus curiae. There are major problems that arise with at least two of these options.

Continuing the trial without Karadzic or any assigned counsel would make the trial patently unfair, regardless of whether he waived his right or not. Confidence could be lost in the administration of the ICTY. The adversarial process, a legitimizing aspect of the court, would fall by the wayside.

Assigning counsel is also problematic. Karadzic could, as in the Šešelj case, challenge the appointment leading to further delays. In addition, unless the court adjourned for some time, counsel would not have sufficient time to prepare an adequate defence.

The ICTY is heavily criticized for overstepping the boundaries imposed by its statute and Rules of Procedure and Evidence. International bodies are limited to what is expressly bestowed onto them. Kevin Jon Heller, a Karadzic legal adviser, believes that the court is not authorized to hold the trial in Karadzic’s absence, even if counsel has been assigned to protect his interests. The ICTY Rules of Procedure, he argues, do not have the same addition that the ICTR made (Rule 82 bis) allowing for trials in absentia.

A Different Possibility

Rather than risking the fairness of the trial by assigning an ill-prepared lawyer or by proceeding without any defence, the court could hold a proceeding to determine whether Karadzic is in contempt of court. The high profile nature of this case is further incentive for the court to ensure the appearance of fairness and justice, which would engender respect for international criminal tribunals in general. A finding of contempt would punish him and potentially compel him to appear.

Proceeding at trial without the accused should only be a last resort, if used at all. The court should explore an avenue that prevents Karadzic from taking advantage of the court and its rules, while still ensuring that he benefits from a fair trial. Upholding the principles of legality and the rule of law further legitimizes the international criminal order. However, international criminal tribunals need coherent and transparent rules of procedure in order for trials, such as Karadzic’s, to be deemed fair.

You can follow the Karadzic trial this Monday, November 2^nd at 9 A.M. G.M.T. + 1 by watching the ICTY’s live feed: www.icty.org. Thanks to Gerard Kennedy, student at Queen’s University Faculty of Law, for his insight.