Bosnia Trial Shows Court's Rising Clout
Current war-crimes hearings may be opening the door to 'supranational' laws.
Timohir Blaskic, a youngish Croatian general indicted for "ethnic cleansing" in Bosnia, stares impassively through bulletproof glass as debate on international law thickens the air in this small courtroom, built two years ago to house the United Nations International Criminal Tribunal for the Former Yugoslavia.
General Blaskic, the highest official to be tried here so far, allegedly failed in 1993 to stop his militia from committing heinous acts of murder and mayhem as it swept through central Bosnia.
Yet last week's hearing was not a chronicle of civilian killings or mass destruction. The issues were less sensational, and less-reported. But they are arguably of greater long-term significance. The question: Can this tribunal require a state to turn over internal documents and order its officials to testify?
The issue, as the judges and lawyers acknowledged, goes to the heart of the four-year-old tribunal's ability to function, especially if indicted leaders like Bosnian Serb leader Radovan Karadzic or top Bosnian Croat Gen. Dario Kordic are ever brought to justice.
Behind what seemed an arcane five-hour squabble over theories of "sovereignty" lies an important issue for any future permanent international criminal court. (Such a court may be voted on this fall at the United Nations.)
Legal advisers here quietly assert that the genocide in Bosnia - and also in Rwanda - have forced the question of shared values and rules on the world legal community. The older "International Court of Justice," also at The Hague, settles conventional disputes between states. But the new tribunal would set precedents that suspend national sovereignty in favor of a developing set of "supranational" laws or standards of accountability in extreme cases such as genocide.
Last January, ruling on a need for a fair criminal trial and a thorough investigation for both prosecutor and defense, tribunal Judge Gabrielle Kirk MacDonald subpoenaed the government of Croatia, asking for a plethora of documents relating to the activities and communications of Blaskic. The subpoena also required testimony about Blaskic from Croatian Minister of Defense Goyko Susak.
Legally, this is uncharted territory. No law has existed that requires a state to turn over internal notes, phone records, communiques, and memos. State officials invariably say "no" when given such requests.
Croatia was no exception. In several appeals, Croatia has said the tribunal is exceeding its authority and that subpoenas violate its national security. But tribunal judges, set up under Chapter 7 of the UN Charter, the most binding level of compliance, have steadily overturned the appeals.
A five-judge panel in July ruled that the court had the power to request internal Croatian documents "... if it is necessary in order to fulfill [the court's] fundamental purposes and to achieve its effective functioning."
A historic appeal
Last week's hearing was Croatia's last appeal and generally regarded as a historic one.
"I am aware that Blaskic is one of the most, if not the most important case, I will ever try," says Louis Arbor, the chief prosecutor. "The issues have everything to do with the coming of age of the tribunal as a criminal court. It is the first time in history we are putting this question to the test: Can international law apply in the area of criminal law?"
"Look, if the court can't request records, then I can't defend my client," says Russel Hayman, Blaskic's Los Angeles-based lawyer, who wants to examine documents in the Bosnian Defense Ministry. "There needs to be equal access to evidence. Otherwise, this isn't a court. It is a dance hall issuing invitations that anyone can ignore."
In part, the issues arising have to do with the clash, brought by the tribunal, between international law and criminal law. The modus vivendi for international law is consensus, gentleness, nonbinding requests, and cooperation. What works in the sphere of criminal law, however, are binding or coercive writs, authoritarian demands, and compliance.
'This isn't Nuremberg'
Croatia's position, stated last week, is that any far-reaching powers to subpoena a state would have been spelled out in the tribunal's mandate. When questioned about the precedent of the Nazi war-crimes trial at Nuremberg and the unlimited access lawyers had to German records, Croatia's Washington-based lawyer, Lee Casey, said: "This isn't Nuremberg. That tribunal was created by conquering powers; this court is different. It's jurisdiction doesn't extend to states.... This sets a dangerous precedent."
If Croatia has agreed to turn over war criminals and to help gather witnesses, Chief Judge Antonio Cassese asked Mr. Casey, why not help with documents?
If Croatia does not turn over documents, the most the tribunal can formally do is "report" it to the UN Security Council, which could pass a condemning resolution. But informal pressure on states that are not in compliance is increasing.
Tactically, a subpoena of Croatia sets the stage for a subpoena (or "binding order") of Serbia, which would delve into the role of the Yugoslav Army (JNA) in Bosnia and the JNA's ties to the regime of Slobodan Milosevic in Belgrade.
Whether any significant documents would be forthcoming from any of the parties is a matter of skepticism at the tribunal.
Tribunal's power grows
Set up in 1993, the Yugoslav war-crimes tribunal was at first regarded as a kind of diplomatic fig leaf - a judicial body with no suspects in the dock that met even while the city of Sarajevo was under heavy shell fire and siege. Even today, only eight of 74 indictees are in captivity.
The perception of The Hague as a serious court is gaining strength with the White House's persistent backing of the Dayton agreements on Bosnia; the first arrests of war criminals by British NATO troops this summer; the verbal support of the tribunal by Secretary of State Madeleine Albright; and the first sentence two months ago of Serb Dusko Tadic for war crimes.
Notes one observer, "The wheels of justice are grinding slowly, but continue to grind. Still, if these trials drag on indefinitely, the feeling among the victims in Bosnia that justice is being done will be lost."