Ad hoc courts such as the tribunal that heard the trial of the wartime leader of Bosnian Serbs have paved the way for a broader consensus on atrocities.
A UN security guard in the detention unit of the international criminal tribunal for the former Yugoslavia.
The international criminal tribunal for the former Yugoslavia has been a powerful catalyst in persuading the United Nations to establish a permanent war crimes court.
Founded in 1993, the ICTY pioneered legal procedures now adopted as precedents by the more recently created international criminal court, which is also based in The Hague.
The idea that “ad hoc” tribunals such as the ICTY or the international criminal tribunal for Rwanda (ICTR) – which hand down justice relating to specific conflicts –will eventually be replaced by a universal court, the ICC, is broadly accepted.
But the ICTY’s persistence and success in bringing to justice both those who gave orders and those who carried out atrocities points to the advantages of having a focused approach that builds on accumulated knowledge and expertise.
By contrast, the ICC, to which 124 countries are fully signed up, has large gaps in its theoretically global jurisdiction because neither the US , Russia, China nor many Middle Eastern states are active participants.
That partial coverage has resulted in many of the ICC’s prosecutions being concentrated in Africa – triggering resentment among many states, among them South Africa, which allege it is biased against the continent.
The problem was identified several years ago by Sir Geoffrey Nice QC, who formerly worked at the ICTY where he led the prosecution of Slobodan Milošević.
The process of choosing conflicts for judicial intervention is “highly selective”, he explained in a 2012 lecture. “War crimes courts and tribunals established over the last 20 years have changed the way the world citizen can think.
“As a result the world citizen may assume that they, like national courts, are part of a coherent, judicial crime and punishment system that happens to be international. Nothing could be further from the truth.
“The USA, Russia and China in particular are not members [of the ICC]. The court is not good enough for their citizens, it would appear. Yet they are happy to send citizens of other non ratifying countries like Sudan or Libya to the court for trial through a security council resolution.”
A further criticism of both UN ad hoc tribunals and the ICC is that their operations represent “victors’ justice”, rewriting history from the perspective of the winners.
Philippe Sands QC, professor of international law at University College London, believes the Balkans conflict paved the way for a broader international consensus on war crimes justice.
“The ICTY was the first international criminal tribunal for 50 years since Nuremberg and Tokyo,” he said. “The break-up of Yugoslavia has been a catalyst with very significant consequences.
“The experience has been mixed. It hasn’t brought tranquility and reconciliation to the region but it has delivered a number of important judgments on individuals.
“The overall record of the ICTY reflects the significant but limited function that international justice can play in resolving longstanding political differences. It’s one tool in an armoury. The ad hoc tribunals have had an easier run than their global counterpart, [the ICC].”
Sands said the Rwandan government, which set up a system of Gacaca community courts in villages across the country, had been more successful than the ICTY in promoting reconciliation. Gacaca means to sit down and discuss issues on a village’s grassy clearing.
One worrying development, Sands said, was crimes against humanity and war crimes are now perceived as being less serious than genocide.
“But if you take the long view,” Sands added, “the development of international justice is a multi-century project and we are just at the beginning. We have to limit our expectations about what can be achieved. There’s a systematic institutional problem with international justice – it’s called politics.”