The Hague, Netherlands: When a panel of UN judges hands down a verdict this week in the trial of former Bosnian Serb military chief Gen. Ratko Mladic, it will mark the end of a ground-breaking era in international law. Yet a new age of international justice is already underway, with other temporary courts and tribunals springing up around the world to prosecute atrocities.
Mladic’s trial is the last at the International Criminal Tribunal for the former Yugoslavia, which was set up in 1993 to prosecute crimes committed in the Balkan wars of the early 1990s.
Over 24 years, it has sent dozens of war criminals to jail — from lowly soldiers and prison camp guards to former Bosnian Serb leader Radovan Karadzic — and it developed key jurisprudence in prosecuting atrocities.
Mladic, who insists he is innocent, faces a maximum life sentence if convicted Wednesday of crimes, including genocide.
What the Yugoslav court hasn’t done, however, is stop such crimes from happening.
Allegations of mass murders and persecutions from the past and present are mounting around the world — from Sri Lanka’s bloody civil war to the carnage in Syria to abuses seen against Rohingya Muslims who fled by the hundreds of thousands as their towns and villages were torched in Myanmar.
This means the list of locations for future temporary courts is growing ever longer.
Just this week, a report by the US Holocaust Memorial Museum and the advocacy group Fortify Rights found there is “mounting evidence” of genocide against the Rohingya. US Secretary of State Rex Tillerson said the US was deeply concerned by “credible reports” of atrocities committed by Myanmar’s security forces and called for an independent investigation.
David Schwendiman, an American prosecutor investigating allegations of organ trafficking and other crimes during Kosovo’s independence struggle, believes the UN tribunal trying Mladic is unlikely to be exactly replicated in the future because of its size and cost. Still, he says the age of impunity for mass atrocities is over.
“The international community has decided ... there is going to be criminal accountability for people in the world for people who ... do the kind of things that are happening in Myanmar and (are) doing the kinds of things that are happening in Syria,” Schwendiman said. “That’s a given now.”
The court where Schwendiman aims to bring prosecutions — known as the Kosovo Specialist Chambers — could be an example of how war crimes cases will be handled in the future. Based in The Hague and staffed by international judges, the court is part of Kosovo’s legal system set up specifically to preside over trials arising from a Council of Europe report into organ trafficking allegations and other crimes.
“That could be a model for other ways of dealing with things like Syria, like Myanmar, like other places where regional institutions might step up and internationalise a court or a tribunal,” he said.
The Hague also is home to the International Criminal Court, but the world’s first permanent tribunal for prosecuting crimes like genocide and crimes against humanity is meant as a last resort to be used when other institutions are unwilling or unable to step in. It so far has had only limited success in bringing to justice senior political and military leaders and is sometimes hamstrung by geopolitical interests beyond its control.
“I think people now see that the ICC cannot be the answer for everything,” said Alex Whiting, a professor at Harvard Law School. “Both because of capacity and resources but also because of institutional fit. I think there will be ad hoc tribunals again. They may be designed differently, a stronger tilt toward hybrid tribunals.”
Syria is an example of how the ICC cannot always act even in the face of overwhelming evidence of atrocities. Russia has vetoed a move to refer crimes in Syria to the ICC. Now, a UN commission of inquiry is gathering evidence that could be used in some kind of court or tribunal in the future.
“I could see that happening for Syria,” Whiting said. “Because some of the big players are not part of the ICC, they would want a hybrid court. The ICC couldn’t handle all the cases from Syria that are likely to come one day. So for all those reasons, I think either in Syria or in other places, there are likely to be new courts that spring up.”
There are already hybrid courts in existence or in the pipeline. In a converted gymnasium at the former headquarters of a Dutch intelligence agency, a mixture of Lebanese and international judges are presiding over the trial in absentia of suspects in the 2005 truck bomb assassination of former Lebanese Prime Minister Rafik Hariri.
The same courtroom hosted the trial of Charles Taylor, the one-time president of Liberia who was convicted in 2012 by a temporary international court of involvement in crimes in Sierra Leone’s bloody civil war and sentenced to 50 years in prison.
A court set up by the African Union and Senegal also convicted former Chad dictator Hissene Habre and sentenced him to life imprisonment for crimes committed during his presidency from 1982-1990.
For the future, a hybrid court is being established in Central African Republic and there are calls for something similar in South Sudan and in Sri Lanka, where a UN report says there are strong indications both government soldiers and Tamil Tiger rebels committed war crimes and crimes against humanity during the conflict that ended in 2009. Sri Lankan authorities are resisting calls for an international tribunal.
Meanwhile, the eyes of the world will be on the Yugoslav court as proclaims judgement in Mladic’s trial.
“It’s a beacon of what can be done,” said Whiting, who worked at the court from 2002-2007. “It’s a source of inspiration for all the future efforts.”