Two extensive articles on the tribunal.
Hidden Challenges of Multi Accused trials
Uncertain futures for war crime tribunals
I know it is not surprising, and that the ICTY/ICTR trials will have to close down someday. But, I think it would be a real miscarriage of justice if the courts shut down without the people most responsible for the war crimes in custody.
If, by chance the top war criminals are not in custody when the courts close, what will happen?
Will they be charged with the ICC?
Or, will they be charged by their own state courts?
Or, will they be transfered to a third country to be charged?
I assume that there is no statue of limitations on genocide, and even if the UN tribunal closes without the major figures in custody; that they can still face prosecution?
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Unfortunately, the Statute of Rome forbids the ICC from issuing indictments for war crimes that predate the coming into effect of the Treaty, meaning a short answer to the first question is no; however, if war crimes were to be committed on the territory of the former Yugoslavia again in the future those crimes could be prosecuted by the ICC as the states of the Former YU are parties to the Statute of Rome.
That leaves the ICTY with two legally sound options.
a) lobby the Security Council of an extention of its mandate given that two of the highest profile war criminals indicted remain at large (this is unlikely as both Russia and China have sent clear signals that they would veto any extention of the ICTY's UNSC mandate)
or b) refer all outstanding cases back to the domestic judiciaries, which the Tribunal is doing already with investigations that did not result in indictments in Croatia and Bosnia. Again, this would also be problematic. Would a trial in Belgrade be fair? Would Bosnian Muslims feel comfortable testifying in Belgrade? Could Belgrade provide adequate witness protection? Again, probably not.
With regard to third party states, if univeral jurisdiction for genocide is incorporated into domestic law then yes, but again, the outcome of such a prosecution would be highly unpredictable as a state prosecutors office in a third country might invest very little time and resources into such a trial and the chances of an aquital would be much higher.
The best option is that the ICTY gains custody of all Tribunal fugitives ASAP or else the chance that the remaining fugitives may go unpunished will rise considerably.
Thank you very much for that extensive answer.
I agree that the possibility of the ICTY mandate being extended is low-and that Russia and China will very likely veto such an action. The quotes in the article from the Russian official seems to reiterate this point of view.
I recall reading of at least one example of someone being charged with acts relating to the genocide in Rwanda, being sent to a court in a European country. But, I'm unsure whether the prosecution/judges were international, or domestic.
Would it be possible to have international judges/lawyers/officials involved in a transfered case, or a case that is being charged in the domestic courts?
I'm remember before PolPot died, he was going to face a trial for his role in organizing the Cambodian genocide; but I can't recall as to whether the Cambodian genocide court was domestic or international, and whether it was based in Cambodia or a neighboring country.
I'm not sure how practical or logistically sound it is. But, perhaps one option would be to temporarily put the court on "hold" when the mandate runs out, but be able to re-open it when (and if) major figures like K&M are captured.
But, again I don't know if that is legally sound or practical.
I certainly hope we don't face the situation where a General Mladic can be in 'hidding' one day, and the next night walk the streets of Belgrade with immunity, all because the UN ICTY court shuts down.
Of course, the best possible outcome would be for K&M to be in custody before the tribunal shuts down; or that the ICTY mandate is extended. If not, then have the case be refered to a local court-with international judges etc.
The possibility of any of that happening seems more and more remote by the moment.
About whether the ICTY could be put on hold, I believe that this too would require a UNSC resolution; however, the ICTY will still technically exist until the last individual convicted by the Tribunal has served out his/her prison sentence, as those convicted will maintain their right to appeal convictions handed down by ICTY trial chambers; however, the Tribunal would still be unable to try new cases.
Which means, as you pointed out, Mladic and Karadzic will probably have to be either put on trial by some sort of internationalized or mixed tribunal in the region, mostly likely in Sarajevo, or by another state. Because many western European states recognize universal jurisdiction, that would most likely take place somewhere in Europe. For example, the Rwandan case in Belgium.
Yet, alot of these cases that have been prosecuted so far have involved individuals that migrated to western Europe and or were arrested transiting western Europe. It can be assumed that neither Mladic or Karadzic will follow in Gotovina's footsteps by vacationing in the EU, which means that again we are left with the problem of Serbia refusing to extradite the fugitives in question. Afterall, if Serbia refuses to surrender Mladic to The Hague, why would Serbia surrender Mladic to a Belgian prosecutor?
Anyway, there exists a real danger that these two individuals could go unpunished if they are not apprehended soon. For example, a few days ago I wrote about an individual named Tsuji Masanobu who evaded capture by US and British authorities for trial at the International Military Tribunal for the Far East and returned to Japan after the Tribunal closed only to successfully be elected to parliament. Although because of the high profile of both Mladic and Karadzic such a turn of events is unlikely to repeat, they could still live the rest of their lives in hiding.
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